HSBC Bank USA, N.A. v. Min Young You

action was voluntarily discontinued (see HSBC Bank USA, N.A. v Min Young You, 203 AD3d 706, 707). In June 2024, the plaintiff moved to confirm a referee's report and for a judgment of foreclosure and sale. The defendants opposed the plaintiff's motion and cross-moved for leave to renew those branches of their prior motion which were for summary judgment dismissing the complaint insofar as asserted against them as time-barred and on their counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the subject mortgage and, in effect, their opposition to the plaintiff's prior cross-motion for summary judgment on the complaint insofar as asserted against them, to strike their counterclaims, and for an order of reference. In support of their cross-motion, the defendants argued that the Foreclosure Abuse Prevention Act (FAPA) (L 2022, ch 821 [eff Dec. 30, 2022]) constituted a change in the law that would alter the prior determination denying those branches of their prior motion and that the voluntary discontinuance of the 2009 action was not sufficient to de-accelerate the mortgage debt (see CPLR 203[h]). In an order entered December 23, 2024, the Supreme Court denied the plaintiff's motion and granted the defendants' cross-motion for leave to renew, and upon renewal, in effect, vacated so much of the November 2018 order as denied those branches of the defendants' prior motion which were for summary judgment dismissing the complaint insofar as asserted against them as time-barred and on their counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the subject mortgage and granted the plaintiff's prior cross-motion for summary judgment on the complaint insofar as asserted against the defendants, to strike their counterclaims, and for an order of reference, and thereupon, granted those branches of the defendants' prior motion and denied the plaintiff's prior cross-motion. The plaintiff appeals.

"A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law" (Opalinski v City of New York, 205 AD3d 917, 919 [internal quotation marks omitted]; see Ditech Fin., LLC v Naidu, 244 AD3d 1067, 1068). "[A] motion for leave to renew pursuant to CPLR 2221(e)(2) based upon 'a change in the law that would change the prior determination' must be made, absent circumstances set forth in CPLR 5015, before the time to appeal the final judgment has expired" (Matter of Eagle Ins. Co. v Persaud, 1 AD3d 356, 357, quoting CPLR 2221[e][2]; see U.S. Bank N.A. v Tong, 230 AD3d 716, 717). Contrary to the plaintiff's contention, since a judgment of foreclosure and sale has not yet been entered or enforced in this action, the defendants' cross-motion for leave to renew was not untimely (see Ditech Fin., LLC v Naidu, 244 AD3d at 1069).

An action to foreclose a mortgage is governed by a six-year statute of limitations (see CPLR 213[4]). "[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, the entire amount is due and the statute of limitations begins to run on the entire debt" (Bank of N.Y. Mellon v Mor, 201 AD3d 691, 694; see U.S. Bank Trust, N.A. v Boreshesky, 241 AD3d 1385, 1386). "The entire mortgage debt will be deemed to have been accelerated by, as relevant here, the commencement of a mortgage foreclosure action in which the complaint seeks payment of the full outstanding loan balance" (U.S. Bank N.A. v Connor, 204 AD3d 861, 863; see U.S. Bank Trust, N.A. v Boreshesky, 241 AD3d at 1386-1387).

CPLR 203(h), as amended by FAPA (L 2022, ch 821, § 4), provides that "[o]nce a cause of action upon an instrument described in [CPLR 213(4)] has accrued, no party may, in form [*3]or effect, unilaterally waive, postpone, cancel, toll, revive, or reset the accrual thereof, or otherwise purport to effect a unilateral extension of the limitations period prescribed by law to commence an action and to interpose the claim, unless expressly prescribed by statute." Moreover, FAPA amended CPLR 3217(e) to provide, in relevant part, that the voluntary discontinuance of a foreclosure action shall not toll, extend, revive, or reset the statute of limitations, unless expressly prescribed by statute (see FV-1, Inc. v Palaguachi, 234 AD3d 818, 821; 97 Lyman Ave., LLC v MTGLQ Invs., L.P., 233 AD3d 1038, 1041). Here, the defendants demonstrated, prima facie, that the six-year statute of limitations began to run in July 2009, when HSBC Corp. commenced the 2009 action and elected to call due the entire amount secured by the subject mortgage (see HSBC Bank USA, N.A. v Corrales, 224 AD3d 816, 818). The defendants further demonstrated that the instant action was commenced in March 2018, more than six years later (see CPLR 213[4]; U.S. Bank Trust, N.A. v Boreshesky,

241 AD3d at 1388). In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, pursuant to CPLR 3217, as amended by FAPA, the voluntary discontinuance of the 2009 action did not serve to revive or reset the statute of limitations (see id. § 3217[e]; IPA Asset Mgt., LLC v HSBC Bank USA, N.A., 234 AD3d 948, 950; Wells Fargo Bank, N.A. v Edwards, 231 AD3d 1189, 1193). The plaintiff's contentions challenging FAPA's retroactive application and constitutionality under the United States and New York Constitutions are without merit (see FV-1, Inc. v Palaguachi,

234 AD3d at 822; Deutsche Bank Natl. Trust Co. v Dagrin, 233 AD3d 1065, 1067-1068; 97 Lyman Ave., LLC v MTGLQ Invs., L.P., 233 AD3d at 1042-1043).

Accordingly, the Supreme Court, upon renewal, properly, in effect, vacated so much of the November 2018 order as denied those branches of the defendants' prior motion which were for summary judgment dismissing the complaint insofar as asserted against them as time-barred and on their counterclaim pursuant to RPAPL 1501(4) to cancel and discharge of record the subject mortgage and granted the plaintiff's prior cross-motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, and thereupon, granted those branches of the defendants' prior motion and denied the plaintiff's prior cross-motion. For similar reasons, the court also properly denied the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale. The plaintiff's remaining contention is without merit.

IANNACCI, J.P., WOOTEN, VENTURA and OTTLEY, JJ., concur.

ENTER:

Darrell M. Joseph Clerk of the Court

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